Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Minimum Age Convention, 1973 (No. 138) - Mongolia (Ratification: 2002)

Other comments on C138

Observation

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Article 1 of the Convention. National policy and application of the Convention in practice. In its previous comments, the Committee noted the adoption of the National Programme for the Elimination of the Worst Forms of Child Labour 2011–16 (the NAP-WFCL). It further noted the Government’s indications that the amendment process concerning child labour has begun in respect of both the Labour Code, as well as the Criminal Code.

The Committee notes the Government’s indication in its report that the National Committee on the Elimination of the Worst Forms of Child Labour has been established to implement the NAP-WFCL, comprised of specialists from different ministries and local officials, social partners and civil society organizations. The Government indicates however that the National Committee was inactive since 2011 due to the absence of donor support and limited resources allocated by the Government. It mentions that the National Committee was reactivated in 2015 with ILO–IPEC support under the Global Action Programme (GAP). The National Authority for Children (NAC) acts as the secretariat of the National Committee and also monitors the implementation of the NAP-WFCL. The Committee notes the outcomes of the NAP-WFCL indicated by the Government, including 694 cases of child labour identified, 141 cases of children who are vulnerable to child labour identified, 16 types of media coverage, four types of training, five types of events organized for the public and work with 25 government agencies, four non-governmental organizations, four business entities and five international organizations. The Government mentions that it has completed 32.5 per cent of the eight objectives of the NAP-WFCL which was evaluated unsatisfactory. The NAC sent a proposal to the Ministry of Labour to revise and improve the NAP-WFCL resulting in the adoption of Regulation A289/119. The Committee further notes the Government’s indications that the draft revised Labour Law was considered by the Cabinet on 2 June 2015 and submitted to the Parliament, which will consider it at its fall session (October 2015 to January 2016). The Committee finally notes the Government’s reference to the Understanding Children’s (UCW) Work programme’s report entitled: The twin challenges of child labour and education marginalisation in East and South-East Asia region (UCW report 2015), which shows that child employment rose from 7 per cent in 2002–03 to 16 per cent in 2011. Moreover, according to this report, child labour is predominant in the agriculture sector with 85 per cent of working children. Finally, 21 per cent of children aged 5 to 14 years old are in rural areas, opposed to 3 per cent in urban areas. The Committee requests the Government to continue its efforts to implement the NAP-WFCL 2011–16 in order to ensure the progressive abolition of child labour and to continue to provide information on the measures taken and results achieved in this regard. The Committee also requests the Government to take the necessary measures to accelerate its legislative amendment process and to supply a copy of such legislation once it has been finalized.

Article 2(1). Scope of application. Informal economy. In its previous comments, the Committee noted that the Labour Law excluded work performed outside the framework of a labour contract and self-employment from its scope of application. The Government indicated that it intended to revise the Labour Law to extend its scope of application.

The Committee notes the Government’s indication that the new draft Labour Law prescribes a definition of employment relationship that covers all workers, not only those in the formal sector as in the current law. However, the Government indicates that section 4.1.1 of the draft Labour Law provides that “employment relations means relations that arise upon mutual agreement between an employer and an employee under which the employee performs certain work for remuneration under the management of the employer”. The Committee notes that the definition provided in the new draft Labour Law does not cover work performed outside the framework of an employer/employee relationship or in the informal economy. The Committee therefore requests the Government to modify its draft Labour law so as to ensure that the protections provided are extended to children working outside of an employment relationship.

Article 2(3). Age of completion of compulsory schooling. In its previous comments, the Committee had noted the contradictory provisions in various national laws which regulate the minimum age for admission to employment and the age of completion of education.

The Committee notes the Government’s indication that its legislation provides for nine years of compulsory schooling starting from the age of 6. The Government indicates that, given that there is a possibility that a child starts working at the age of 15 years old instead of finishing school, the new draft Labour Law proposes a statutory minimum age for admission to employment that links with the age of compulsory schooling. The Government refers to section 92.1 of the draft Labour Law, according to which employment is prohibited to “(1) children less than 15 years of age and (2) those who have reached that age but who have not finished compulsory education”. The Committee accordingly requests the Government to take the necessary measures to ensure that a provision linking the minimum age for admission to employment to the age of completion of compulsory schooling is included in the draft Labour Law and to accelerate its adoption in the very near future.

Article 7(1) and (3). Light work and determination of light work activities. The Committee previously noted the Government’s indication that the legislation concerning light work is included in the draft Labour Code regulations under section 90.10, which stipulates that regulations will determine light work and hours and conditions in which minors may be employed.

The Committee notes the Government’s statement that there is no regulation on light work as yet. The Government indicates that, according to the NAC, light work refers to work that is not in the list of work prohibited to minors. It further mentions that the Ministry of Labour has also established a working group to work on this regulation. The Committee recalls that, under Article 7(3) of the Convention, the competent authority shall prescribe the number of hours during which, and the conditions in which, light work may be undertaken for persons 13 to 15 years of age. The Committee urges the Government to take the necessary measures to ensure that a provision regulating light work is adopted in the near future.

Article 8. Artistic performances. The Committee previously noted that, under section 8.1 of the Law on the Protection of the Rights of the Child, a list of activities and performances which may adversely affect a child’s health will be developed and approved by governmental officials responsible for health issues.

The Committee notes the Government’s indication that there is no law or policy limiting age and work hours for children working in artistic performances yet. The Government mentions that the NAC has submitted recommendations under the NAP-WFCL to create regulations for children working in the circus. The Committee recalls that, Article 8 of the Convention allows exceptions to the specified minimum age of admission to employment or work for such purposes as participation in artistic performances only by permits granted by the competent authority in individual cases. The Committee therefore requests the Government to take the necessary measures in the near future to finalize its legislation establishing a system of individual permits to be granted for children under 15 years who work in activities such as artistic performances, and to limit the hours during which, and prescribe the conditions in which, such employment or work is allowed.

Article 9(1) and (3). Penalties and keeping of registers. In its previous comments, the Committee had noted that the legislation concerning penalties for breach of laws relating to children’s rights were ineffective. The Committee had also noted that the national legislation does not contain provisions on the obligation of an employer to keep and make available the registers of persons under the age of 18 whom he/she employs. The Committee noted the Government’s indication that a draft of the revised version of the Criminal Code, which includes a criminal offence provision for persons employing children in the worst forms of labour, has been submitted to the Parliament. The Committee also noted that section 90.9 of the draft regulations to the Labour Law prescribes that an employer must keep a record of “minor employees”.

The Committee notes the Government’s statement that employers are not yet required to register workers under the age of 18. The Committee also notes that the draft Criminal Code is currently being reviewed by the Parliament. The Committee therefore requests the Government to take the necessary measures to ensure that the draft Criminal Code establishes sufficiently effective and dissuasive penalties. It also requests the Government to ensure that section 90.9 of the draft regulations to the Labour Law will require employer to keep a register containing the names, age (or date of birth) of all persons under the age of 18 years whom they employ.

The Committee expresses the firm hope that the Government will take into consideration the Committee’s comments while finalizing its draft legislation. The Committee invites the Government to consider availing technical assistance from the ILO to bring its legislation into conformity with the Convention. In this regard, the Committee welcomes the ILO project financed by the Directorate General for Trade of the European Commission to support the Generalised Scheme of Preferences (GSP+) beneficiary countries to effectively implement international labour standards targeting four countries and notably Mongolia.